People v. Cox

• Decision Date: 17 June 1968
• Docket Number: Cr. 6205
• Citation: 263 Cal.App.2d 176,69 Cal.Rptr. 410
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick Elmer COX, aka Harold James, Defendant and Appellant.

Page 410

69 Cal.Rptr. 410

263 Cal.App.2d 176

PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick Elmer COX, aka Harold James, Defendant and Appellant.

Cr. 6205.

Court of Appeal, First District, Division 1, California.

June 17, 1968.

Rehearing Denied July 17, 1968.

Hearing Denied Aug. 14, 1968.

Cooper, White & Cooper, James J. Brosnahan, San Francisco, for appellant (under appointment of Court of Appeal).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, George R. Nock, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant, personally, and his trial counsel, on his behalf, have each filed a notice of appeal from a judgment of conviction sentencing defendant to state prison following a jury verdict that found him guilty of a conspiracy (Pen.Code, § 182, subd. 1) to manufacture without a permit and possess amphetamine, a dangerous drug (Bus. & Prof.Code, § 4211, subd. (c)) in violation of sections 4084 and 4230 of the Business and Professions Code and section 26281 of the Health and Safety Code.

The evidence upon which defendant was convicted was obtained by the execution of a search warrant. Defendant contends that the magistrate erred in denying his motion to suppress the evidence so seized, and that the trial court erred in admitting it against him at the trial, because the search warrant was invalid. This assertion is predicated upon the ground that the observations related in the affidavit upon which the search warrant was based were made as the result of an illegal entry into premises leased by defendant. Defendant urges that the original entry was illegal (1) because the service of an outstanding warrant for the arrest of defendant was delayed and used as a subterfuge to justify the original entry into the premises, and (2) because in any event the original entry in the course of attempting to execute the warrant of arrest was not properly effected. These contentions have been examined and found to be without merit. The judgment must be affirmed.

General Statement of Facts

Defendant first moved to quash the search warrant before the magistrate. The magistrate found the affidavit filed in support of the search warrant sufficient on its face, but conducted an extensive hearing to determine whether the information in the affidavit was obtained as a result of a prior illegal entry and search. At the conclusion of that hearing the court denied the motion to quash the search warrant. At the trial in response to defendant's objection, a further hearing was held, out of the presence of the jury, to determine the validity of the search warrant and the admissibility of the evidence secured when it was executed. The record of the hearing before the magistrate was introduced in evidence, and further testimony was taken. The trial court likewise overruled defendant's objections.

The evidence adduced shows that prior to March 7, 1966, when defendant appeared in court in Santa Rosa on charges not related to the instant offense, both the Sonoma County sheriff's office and the police department of the City of Santa Rosa had been apprised of an outstanding warrant for defendant's arrest on a charge pending in San Mateo County of automobile embezzlement in violation of section 10851 of the Vehicle Code, and that each law enforcement agency had previously attempted to serve the warrant. Defendant claims that the failure to serve the warrant on the occasion when he appeared in court was deliberate and colors and renders invalid the subsequent use of the warrant in connection with the entry to the premises he leased. The facts bearing on this question are discussed below in connection with the applicable legal principles.

On March 9, 1966, the chief of the police department was advised by another law enforcement agency that defendant could be found at premises at 2912 Spring Creek Drive in the city. An attempt to serve defendant at that address did not turn him up, but did result in the arrest of three occupants of the premises. No attack is made upon the actions of the police officers in connection with these arrests. A young woman arrested on that occasion did unwittingly reveal a telephone number for defendant. This number was traced and revealed an address in the unincorporated area of the county.

On March 11, 1966, the sheriff's office received advise from the San Mateo County sheriff's office that defendant could be located through a post office box. Investigation led to the same address as had been independently uncovered by the police department. Officers from each of the agencies joined forces, and it is their activities in connection with their attempt to serve the warrant of arrest which are attacked by defendant and reviewed below.

On the basis of the observations made on March 11, 1966, and information received from the State Bureau of Narcotics Enforcement, as incorporated in an affidavit and supplemented by testimony given before the magistrate, a search warrant was issued. Pursuant to the search warrant, chemicals and other articles of tangible evidence were seized and used at the trial to establish that defendant was conspiring to manufacture and possess amphetamine.

Failure to Serve the Warrant of Arrest

Before analyzing the specific contention of defendant it may be noted that a search warrant cannot be justified upon the basis of information that was illegally acquired. (People v. Carswell (1959) 51 Cal.2d 602, 606--607, 335 P.2d 99 (cert. denied (1959) 361 U.S. 854, 80 S.Ct. 100, 4 L.Ed.2d 92); People v. Roberts (1956) 47 Cal.2d 374, 377, 303 P.2d 721.) In the proceedings attacking the search warrant, the burden was on the prosecution to show that the original entry into the premises was lawful. (People v. Carswell, supra, 51 Cal.2d at p. 607, 335 P.2d 99; People v Roberts, supra, 47 Cal.2d at p. 377, 303 P.2d 721.) Nevertheless, if there is conflicting evidence, or if conflicting inferences may be drawn from evidence which is not controverted, the findings of the trial court must be upheld, and this court cannot substitute its judgment to overturn the conclusions of the lower court. (People v. Carrillo (1966) 64 Cal.2d 387, 390--391, 50 Cal.Rptr. 185, 412 P.2d 377; People v. Ghimenti (1965) 232 Cal.App.2d 76, 81, 42 Cal.Rptr. 504.)

Defendant relies upon the principle that the service of an arrest warrant cannot be used as a pretext for a search for evidence. In McKnight v. United States (1950) 87 U.S.App.D.C. 151, 183 F.2d 977, the court reversed a denial of a motion to suppress evidence that had been obtained in connection with the arrest, under a warrant, of a defendant in certain premises when there had been ample opportunity to arrest him before. The court stated, 'Neither policemen nor private citizens can justify breaking into a house, or other violence by deliberately creating an alleged necessity for it.' (183 F.2d at p. 978. See also United States v. Lefkowitz (1932) 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Go-Bart Co. v. United States (1930) 282 U.S. 344, 356--358, 51 S.Ct. 153, 75 L.Ed. 374; and United States v. Alberti (D.N.Y.1954) 120 F.Supp. 171, 173--174; but cf. Harris v. United States (1947) 331 U.S. 145, 153, 67 S.Ct. 1098, 91 L.Ed. 1399; and United States v. Costello (2d Cir.1967) 381 F.2d 698, 700.) The rule has been recognized in this state. In People v. Ghimenti, supra, 232 Cal.App.2d 76, 42 Cal.Rptr. 504, the court took cognizance of authorities 'which hold that where the search and not the arrest was the real object of the officers in entering upon the premises and the arrest was a pretext for or, at most, an incident of the search, the search cannot be held to be reasonable. (People v. Haven, 59 Cal.2d 713, 31 Cal.Rptr. 47, 381 P.2d 927; People v. Roberts, 47 Cal.2d 374, 303 P.2d 721; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.) Further, where the arrest is for one crime, a general exploratory search for evidence of other crimes may not be made. (People v. Mills, 148 Cal.App.2d 392, 399--402, 306 P.2d 1005.)' (232 Cal.App.2d at p. 81, 42 Cal.Rptr. at p. 507. See, in addition to cases cited, People v. Egan (1967) 250 Cal.App.2d 433, 437, 58 Cal.Rptr. 627, and People v. Wilson (1956) 145 Cal.App.2d 1, 5, 301 P.2d 974.) In Egan, supra, the opinion states, 'Search founded upon probable cause must be incident to a lawful arrest. (Citations.)' (250 Cal.App.2d at p. 437, 58 Cal.Rptr. at p. 630.)

The facts in this case do not compel application of the foregoing principles. On January 19, 1966, the warrant for defendant's arrest for violation of section 10851 of the Vehicle Code was issued, apparently in San Mateo County. On the 21st, the Sonoma County sheriff's office received a teletype copy of the warrant. On February 25th a lieutenant in the sheriff's office went to court in an unsuccessful attempt to serve defendant, who was scheduled to, but did not, appear in court on another charge. Then a Sonoma County deputy district attorney advised the sheriff's office that defendant would be in court on March 7, 1966. Thereafter, the deputy district attorney advised the sheriff's office that defendant's attorney had represented that the charge for which the outstanding warrant had been issued was going to be dismissed, and he instructed the sheriff's office not to serve the warrant. On March 11, 1966, however, the sheriff's office received a second teletype warrant with information that defendant could be located through a post office box at the Penngrove post office. A deputy sheriff investigated this lead and was advised that the box holder lived at 2147 Crane Canyon Road in Sonoma County under the name of James. The visit to and search of these premises, which is described below, ensued.

The police department acknowledgely was investigating possible narcotic violations by defendant in February 1966. It also apparently had a copy of the warrant for defendant's arrest. In early...